Bombay High Court
Member Secretary,Dis,Trrict ... vs Ku.Sangita Trambakrao Puri And Another on 18 April, 2019
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 768 OF 2018
PETITIONERS :- 1. Member Secretary,
District Selection Committee,
District Health Officer,
Zilla Parishad, Akola.
2. Chief Executive Officer,
Zilla Parishad Akola,
District Akola.
...VERSUS...
RESPONDENTS :-1. Ku.Sangita Trambakrao Puri,
R/o Jamthi Bu., Tq.Murtizapur,
District Akola;
2. Divisional Commissioner,
For persons with disabilities,
Maharashtra State, Pune.
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Mr. B.N. Jaipurkar, counsel for the petitioners
Mr. Apurv De, counsel for the respondent no.1
Mr. K.L. Dharmadhikari, A.G.P for respondent no.2
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CORAM : MANISH PITALE, J.
DATE : 18.04.2019.
ORAL JUDGMENT
Heard.
2. Rule. Rule made returnable forthwith. The Writ Kavita.
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3. By this Writ Petition, the petitioners i.e. the District Selection Committee of the Zilla Parishad, Akola and the Chief Executive Officer of the Zilla Parishad have challenged order dated 17.11.2017 passed by the respondent No.2 Commissioner for persons with disabilities for State of Maharashtra, whereby a direction was given to the petitioners to give appointment to respondent No.1 on the post of Nursing Officer (female).
4. On 22.8.2014 an advertisement was issued by the petitioner Zilla Parishad asking for applications for appointment to various posts, including the post of Nursing Officer (female). In the advertisement six posts, were shown to be reserved for persons belonging to the category of disabled persons and it was specified that the reservation would be for disabled persons having one leg. The respondent No.1 applied for the said post of Nursing Officer (female) as she had the necessary qualifications for the said post. Along with the application, the respondent No.1 also submitted a Kavita.
::: Uploaded on - 24/04/2019 ::: Downloaded on - 07/04/2020 00:32:42 ::: 24-wp-768-18-Judgment 3/15 disability certificate, wherein it was specified by the issuing authority that the respondent No.1 suffered from disability of the spine i.e. ''Kypho-Scoliotic Deformity D-Spine'', further stating that the per centage of disability was 58 % and that the said condition was permanent, non progressive and not likely to improve. On the basis of the said application submitted by respondent No.1, she along with other candidates were asked to appear for written examination. The respondent No.1 cleared the written examination and being selected for the said post, she was called upon by communication dated 23.6.2015 to present her original documents for verification before the petitioner No.1 so that further action could be taken in the matter. But, instead of issuing an appointment order, the petitioner No.1 issued letter dated 25.2.2016 to the respondent No.1, stating that she was not eligible to be appointed on the aforesaid post of Nursing Officer (female) because it was reserved for persons suffering disability of having only one leg and that the disability suffered by her as per the certificate submitted, did not match with the requirement as per the advertisement and on that basis, it was stated that she could not be given the appointment. The petitioner No.1 relied upon a Kavita.
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5. Aggrieved by the same, the respondent No.1 filed a complaint under Section 80 and 82 of the Rights of Persons with Disabilities Act, 2016 (herein after referred to as the ''Act'') before the respondent No.2-Commissioner. By the impugned order, the respondent No.2 allowed the complaint filed by the respondent No.1 and held that the act of the petitioners reserving all six posts of Nursing Officer (female) only for persons suffering disability of having only one leg, was discriminatory to persons suffering from other disabilities, including the respondent No.1, who was in fact found fit to be appointed on the said post on merits. Reference was made to judgment of the Hon'ble Supreme Court in the case of Rajeev Kumar Gupta and others Vs. Union of India and ors. Reported in 2016(13) SCC 153 and the petitioner was directed to take necessary steps within 30 days to appoint respondent no.1 Kavita.
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6. Mr.B.N. Jaipurkar, learned counsel for the petitioners submitted that no fault could be found with the action of the petitioners in showing their inability to appoint respondent No.1 because, six posts of Nursing Officer (female) as per the advertisement were reserved for only those disabled persons, who were suffering from disability of having only one leg and that the petitioners had followed the relevant notification issued by the Central Government as also the Government Resolution issued by the State of Maharashtra and the guidance rendered by the relevant department. It was submitted that when it was found during verification of documents that the respondent No.1 did not satisfy the criterion of reservation, the petitioners were justified in passing the order dated 25.2.2016 showing their inability to appoint the respondent No.1 in the aforesaid post. It was submitted that the petitioners could not go beyond the directions of the State and that the respondent No.2-Commissioner committed an error in passing impugned order. Reliance was Kavita.
::: Uploaded on - 24/04/2019 ::: Downloaded on - 07/04/2020 00:32:42 ::: 24-wp-768-18-Judgment 6/15 placed on the Judgment of Yasmeen Mansuree Vrs. Union of India and ors. decided on 26.9.2018 passed in W.P.(C) No.6897 of 2018 to contend that the contentions similar to those raised on behalf of the respondent No.1 were rejected by the Delhi High Court .
7. On the other hand, Mr. Apurv De, learned counsel appearing for respondent No.1 submitted that the order passed by the respondent No.2-Commissioner in the present case was based on proper appreciation of the provisions of the aforesaid Act particularly Section 34 thereof and that no interference was warranted at the hands of this Court exercising Writ jurisdiction. It was submitted that identifying the post of Nursing Officer (female) only for one kind of disability amounted to discrimination against persons suffering other types of disability, including a person like the petitioner. The learned counsel placed emphasis on Section 34 of the aforesaid Act to contend that the relevant classification would be under Section 34(1)(c), which pertained to Locomotor disability applicable to the petitioner as much as it was applicable to a person suffering disability of having only one leg. On this Kavita.
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8. Mr.K.L. Dharmadhikari, learned Assistant Government Pleader, appeared on behalf of the respondent No.2- Commissioner.
9. In order to appreciate the rival contentions, it would be relevant to refer Section 34 (1) of the said Act, which reads as follows:-
34. Reservation:(1) Every appropriate Government shall appoint in every Government establishment,not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a)
(b) and (c) and one per cent for persons with Kavita.::: Uploaded on - 24/04/2019 ::: Downloaded on - 07/04/2020 00:32:42 ::: 24-wp-768-18-Judgment 8/15
benchmark disabilities under clauses (d) and
(e) namely, :--
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-
blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section''.
10. The said provision specifies the classes for whom the appropriate government is required to reserve vacancies. The criterion or class stated in section 34(1)(c) above, appears to be relevant for the present case. The respondent No.2 Commissioner Kavita.
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11. In the backdrop of the aforesaid provision, it needs to be examined as to whether a particular set of posts like Nursing Officer (female) in the present case could be reserved only for the persons suffering a kind of disability that could fall within the classes specified under Section 34(1) of the aforesaid Act. The notification of the Central Government, the Government Resolution issued by the State of Maharashtra and the advertisement issued by the petitioners all proceed on the basis that the post of Nursing Officer is to be filled from the disability category only from persons suffering specific disability of having only one leg. It is difficult to understand the logic behind such action and such specification. As per the advertisement, six posts of Nursing Officer (female) have been identified for being reserved under the provisions of the said Act and all of them have been Kavita.
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24-wp-768-18-Judgment 10/15 shown as reserved for persons suffering from disability of having only one leg. The purpose of Section 34(1) of the aforesaid Act stands clearly defeated if such a classification within classification is permitted. Reserving the posts under the aforesaid act for the specified broader classification, for instance in this case, under Section 34(1)(c) being the disability concerning Locomotor disability and other such specified disabilities would have been proper but to limit reservation to any one kind of Locomotor disability, as in the present case, appears to be clearly discriminatory and unsustainable.
12. A perusal of the notification issued by the Central Government placed on record on behalf of the petitioners shows that while identifying the post and its designation of Nursing Officer, although the category of disabled persons suitable for the job has been identified as disability of having one leg, the physical requirements specified for such post are also relevant. The said requirements specify that the person with disability who falls under the said category must have the ability of sitting, reading, walking, standing, bending, manipulation by finger and seeing. Kavita.
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24-wp-768-18-Judgment 11/15 This is significant because a proper and harmonious reading of the said notification would lead to a conclusion that any person suffering a disability and eligible under the provisions of the said Act, in order to be appointed as Nursing Officer must satisfy the said physical requirements. In the present case, there is no dispute about the fact that the respondent No.1 does satisfy all the aforesaid physical requirements for the post of Nursing Officer. The only difficulty that the petitioners claimed to be facing in appointing respondent No.1 is that she does not satisfy the requirement of having disability of one leg. This Court is of the opinion that the tenor of the notification of the Central Government and the Government Resolution which the petitioners claimed to have followed is not strictly in tune with the requirements of the aforesaid Act. The reservation under Section 34(1) has to be for broader specific classes identified therein and all the posts of Nursing Officer (female) cannot be permitted to be reserved for persons suffering disability only of a particular kind.
13. In the present case, the respondent No.2 Commissioner in the impugned order has correctly identified the Kavita.
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24-wp-768-18-Judgment 12/15 defective manner in which the petitioner had applied the requirement of reservation under the aforesaid Act while making appointments to the post of Nursing Officer (female). The Commissioner correctly found that the interpretation sought to be given by the petitioners, based on opinion given by the concerned department of the State, exposed the actions of the petitioner to the vice of discrimination by insisting upon appointment on the post of Nursing Officer (female) only from persons having disability of one leg. The reference made to the judgment of the Honble Supreme Court in the Case of Rajeev Kumar Gupta and others Vs. Union of India and ors. (supra) appears to be relevant to the extent that the purpose of Section 34 of the aforesaid Act specifying the reservation for persons suffering with disabilities must be satisfied while making the appointments by the State or its instrumentalities like the petitioners. To that extent the respondent No.2-Commissioner was justified in relying upon the aforesaid judgment of Hon'ble Supreme Court to hold against the petitioners.
Kavita.
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14. Insofar as the reliance placed by the learned counsel for the petitioners on the judgment of the Delhi High Court in the Case of Yasmeen Mansuree Vrs. Union of India and ors. (supra), suffice it to say that the facts of the said case were materially different from the present case, particularly because in the said case the advertisement itself was challenged. In the present case, while undertaking the process of selection in pursuance of the advertisement dated 22.8.2014, the petitioners not only entertained the application of respondent No.1, but permitted her to appear for the written examination. This was after the petitioners were clearly made aware about nature of disability suffered by respondent No.1, particularly in view of certificate of disability placed on record along with application by respondent No.1. In the face of the said material, the petitioners expressly permitted the respondent No.1 to appear in the written examination. She was found to have cleared the same on merits and thereupon by letter dated 23.6.2015, the petitioners specifically called upon the respondent no.1 to be present with her original documents for verification. This only meant that the petitioners wanted to appoint respondent No.1 on the post of Kavita.
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24-wp-768-18-Judgment 14/15 Nursing Officer (female)having clearing the written examination and being found fit for appointment to the said post. At this stage, the petitioners could not be permitted to turn around and the claim that the respondent No.1 was not eligible to be appointed as per opinion given by the concerned department of the State. The said action of the petitioners was correctly found to be unsustainable by the respondent No.2. Therefore, the reliance placed by the learned counsel for the petitioners on the aforesaid judgment of the Delhi High Court is wholly misplaced.
15. Apart from this, it is correctly pointed out by the learned counsel appearing for the respondent No.1 that not only the said respondent holds necessary qualifications but she is having experience of working in the concerned field for almost nine years. Relevant documents certifying the same are also on record. Thus, it becomes evidently clear that the petitioners could not have denied the appointment to respondent No.1 on the basis of an opinion as given by the concerned department of the State, particularly when the respondent No.1 indeed suffers from the disability that can be placed under Section 34(1)(c) of the Kavita.
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Commissioner committed an error in passing impugned order and therefore the present Writ Petition is found to be without any merits. Accordingly it is dismissed. No costs.
JUDGE Kavita.
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